That’s not to say there aren’t issues. “The New Black,” a superb documentary about the marriage equality effort in Maryland within the black community, zeroes in on them. But to focus on those issues and allow them to color one’s view of the entire African American community and LGBT equality would be a mistake. Folks have failed to recognize or appreciate the proactive leadership of four straight black men who hastened the demise of “don’t ask don’t tell” and the so-called Defense of Marriage Act (DOMA).
As general counsel at the Defense Department, Jeh Johnson conducted and co-wrote (with Army Gen. Carter F. Ham) a study on the impact of allowing gay men and lesbians to serve openly in the military, which included a survey of men and women of the armed forces. The nine-month effort in 2010 gave Congress the ammunition it needed to repeal the discriminatory 18-year-old “don’t ask don’t tell” law. He returned to private practice.
When Edith Windsor of New York filed suit against the United States to challenge DOMA in Nov. 2010, it was in a jurisdiction where the question of whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny had not been settled. As the associate attorney general in charge of the civil division, Tony West led an interagency process to evaluate the standard of review that should be applied. Not only did West recommend a “heightened scrutiny” of review, but he also urged that Justice no longer defend DOMA in court because it was unconstitutional. In June, the Supreme Court agreed. West is now the associate attorney general of the United States.
West made the recommendation of “heightened scrutiny” in the Windsor case, but it was the backing of his boss that put the wheels in motion for DOMA’s demise. In a six-page letter to House Speaker John Boehner (R-Ohio) on Feb. 23, 2011, Attorney General Eric Holder outlined the legal basis for no longer defending a law motivated by bias and negative stereotypes.
Careful yet persistent pushing by President Obama in words and deeds gave Johnson, West and Holder the room they needed to create the environment to end DOMA and “don’t ask, don’t tell.”
In his first State of the Union address, President Obama put “don’t ask, don’t tell” on notice. “This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are,” he said. The path to ending the ban on gay men and lesbians serving openly in the military, particularly the last 18 days, was arduous. But gay men and lesbians now can proudly and openly serve their country.
That six-page DOMA letter to Boehner had West’s arguments and Holder’s signature, but the historic missive expressed Obama’s “determination that Section 3 of the Defense of Marriage Act…, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.” The president publicly supported marriage equality in a May 2012 television interview. And he said it again at his second inaugural in January.
Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law. For if we are truly created equal, then surely the love we commit to one another must be equal, as well.
Five months later, the Supreme Court voided DOMA as the law of the land.
These things don’t happen by accident. And they certainly don’t happen without leadership. Those two major obstacles to LGBT Americans sharing fully in the American dream fell because four straight black men pushed to make it happen.
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